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Olish v. Heaney Justice Pines Olish v. Heaney – In this Proceeding, Petitioners Donald Olish and Steven Dyer (“Petitioners”) seek Judgment, pursuant to Article 78 of the CPLR, annulling and setting aside the action of Respondent Town Board of the Town of Southampton (“Town”), which adopted a change of zone of a parcel of land within the Town’s jurisdiction from CR-200 to RPDD, as well as enjoining and/or staying any actions by all Respondents in furtherance of the change of zone. The Town, on its own motion, following notice and a series of public hearings, changed the zoning district classification of fifty two acres from CR-200 (5 acre single family residential) to RPDD (Residential Planned Development District), on May 14, 2002, to allow the subject site to be developed as a planned retirement community, consisting of 189 single-family units, ten percent of which would be offered as moderate income housing units. The Respondent 1320 Entertainment, Inc. (“Owner”) is the owner of the 52 acres, which is part of a 66.6 acre parcel, 14.2 acres of which is located within the Central Pine Barrens Core Preservation Area. Respondent Engel Burman Senior Housing, LLC. (“Engel Burman”) is the contract-vendee of the entire 66.6 acre site. Although the subject site is zoned for 5 acre residential housing, it is currently the site of the nonconforming Westhampton Drag Strip. Petitioners, both of whom own residences approximately one-half mile from the subject site, allege that the Board’s actions were arbitrary and capricious, and in violation of the State Environmental Quality Review Act (“SEQRA”), the Town Law and the Open Meetings ( Public Officers) Law. Respondent Town Board moves to dismiss the Petition under CPLR §7804(f) on the ground that the Petitioners lack standing pursuant to CPLR §3211 (a)(3). Respondents Owner and Engel Burman move on similar grounds as well as CPLR §3212, asserting that Petitioners’ allegations fail to state a cause of action under SEQRA, The Town law or the Public Officers Law. STANDING The Court of Appeals, in The Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY 2d 761, sets forth the bases for assertion of standing when challenging a municipal action based upon an alleged failure to follow the provisions of the State Environmental Quality Review Act (“SEQRA”). In that case, the Suffolk County Legislature adopted a ban on the use of non-biodegradable plastics by retail food packaging establishments. The trade organization representing the plastics industry challenged the action, inter alia, on the ground that the County Legislature failed to conduct an adequate environmental review prior to passage of the legislation. They alleged that the SEQRA review failed to consider and examine the potential adverse impact on groundwater, the cost of waste disposal, traffic, air and noise pollution, resulting from the increased use of paper food packaging substitutes. In concluding that the plaintiffs lacked standing to sue under SEQRA, the Court held that a party attacking legislation under SEQRA, must demonstrate that the alleged injury falls within “the zone of interests protected by the statute invoked”. The Society of Plastic Industry, Inc. v. County of Suffolk, 77 NY2d 761,773. The “zone of interests” test requires the proponent of standing demonstrate a tying of in-fact injury to the asserted government act challenged; and, in land use matters, such test demands that the plaintiff demonstrate that the proposal will cause direct injury that is somehow different from that suffered by the public at large. Id at 773,774. In a fairly sweeping statement, the Court of Appeals went on to state that the standing test invoked therein would apply “whether the challenge to governmental action is based on a SEQRA violation . . . . or other grounds”. Id at 774. In Rediker v. Zoning Board of Appeals of the Town of Philipstown, 280 A.D. 2d 548, the Appellate Division, Second Department, held that homeowners, living within one-third mile from the site of a proposed cellular tower, lacked standing to make a challenge to the land use action based essentially on an allegation that the special use permit was granted without hearing their objections or considering evidence supporting opposition. Specifically, the petitioners in that Article 78 Proceeding alleged that the applicant submitted information to the municipality after the close of the public hearing. Applying the reasoning set forth in The Society of Plastics case, the Appellate Court found that petitioners had failed to allege “injury different in kind or degree from that suffered by all in the general vicinity”. In Buerger v. Town of Grafton, 235 A.D. 2d 984, the Appellate Division, Third Department, found that the concerns of a petitioner, whose home was 600 feet from a proposed 626 acre residential subdivision, regarding flood damage to her lakeside property, drinking water pollution and forest habitat degradation were likewise shared by the population in general, and, therefore, did not confer standing. In his recent article, reviewing SEQRA determinations for the calendar year 2002, Michael Gerrard noted that plaintiffs were found to lack standing in nine cases, seven from the Appellate Divisions of the Second, Third and Fourth Departments, including a plaintiff whose business was located just two blocks from a new office building, which involved a major demolition. Save Our Main Street Buildings, et. al. v. Greene County Legislature, 293 A.D. 2d 907. The key to these cases is a general theme that plaintiffs who express injury similar to that likely to be suffered by the public at large and those who make allegations of particular injury, unsubstantiated by any record, will not succeed in invoking the jurisdiction of the courts. SEQRA Review for 2002: A Good Year for Applicants, Government, NYLJ, 3/28/03, p.5, col.2. In Oates, et. al. v. Village of Watkins Glen, et. al., 290 A.D. 2d 758, a residential property owner within 530 feet from a proposed Wal Mart supercenter site was denied standing based on unsubstantiated allegations concerning increasing traffic and an expected change in the character of the community. The Petitioners herein allege, in their Article 78 Petition, that their standing derives from their proximity to the proposed development, the impact of the development on the rural character of their neighborhoods, the adverse impact on the continued use and enjoyment of their homes, and the failure of the Respondents to act in the manner prescribed by law. In affidavits first submitted in opposition to the Respondents’ motions to dismiss the Petition for lack of standing, Petitioner, Steven Dyer, asserts that the proposal will dramatically increase traffic at the intersection which is the only means of ingress and egress to the road on which his residence is situated. Petitioner, Donald Olish, claims that in addition to increased traffic in the vicinity, the proposed multi family project will materially alter the rural, wooded and agricultural character of the community; that the proposed sewage treatment plant would adversely affect the groundwater; that no study had been conducted on the impact of the proposal on the existing water table; and that there is some historic significance to the Westhampton Raceway (Drag strip), which the SEQRA review ignored. Respondent Town has provided an aerial photograph attached to its motion to dismiss the Petition, demonstrating that both Petitioners are .46 miles from the subject site; that there are twenty six houses on Petitioner’s road and that his property is at the dead end of the cul de sac. With regard to the general concerns expressed by both Petitioners concerning the nature of the community, the Town alleges that these too are shared by the community at large and do not suffice, as set forth, to confer standing. The allegations of harm to drinking water, the Town asserts, are to no avail, in view of the fact that neither Petitioner has alleged that they even possess well water, and that general allegations with regard to effluent were expressly rejected in the Second Department’s recent decision denying the petitioners standing in Long Island Pine Barrens Society. et al. v. Planning Board of the Town of Brookhaven, 213 A.D. 2d 484. In the opinion of this Court, based upon careful consideration of all of the above factors, the Petitioners have simply failed to set forth sufficient allegations to confer standing to attack the Respondents’ action. Whether the attack on the municipal land use action is by an Article 78 Proceeding under SEQRA or, as several of Petitioners’ causes of action should have been brought, by a Declaratory Judgment Action under CPLR §3001, the claimants have failed to demonstrate that the alleged injuries suffered by virtue of the Town’s zoning approval constituted direct harm that “is in some way different from that of the public at large . . . .” Society of Plastics, supra. This requirement, essential to finding that a claim asserted is justiciable, applies whether the challenge to the government’s actions is based on a violation of SEQRA or otherwise. Id. The property owners in the case at Bar were, indeed, further from the proposed residential development than the homeowners in the recent Buerger case, supra. In Oates, supra, the Appellate Court rejected the standing claims of a residential property owner, separated from a large proposed commercial center, by seven residential lots. Id. at 481,482. In both cases, similar arguments with regard to environmental, traffic, and community character concerns were raised and rejected by the Appellate Courts. In Rediker, supra, the concerns that outside the record information was utilized to influence a municipal special permit application approval, were similarly rejected on standing grounds where the Petitioners were closer to the proposed use than the petitioners in this case. The seemingly harsh nature of this restriction grows out of the courts’ recognition that, in land use decisions, a government entity is making a direct impact on a fairly confined site or group of sites while having an indirect impact on the broader community by indirectly affecting noise, traffic patterns, air and water quality, character and aesthetics. See, Society of Plastics, supra. It has been the rule of law set down by the Court of Appeals that those broad indirect effects, while perhaps felt by many individuals, do not create a justiciable controversy before the courts of this State. * * * As detailed below, had Petitioners overcome the standing barrier, they fail to demonstrate that Respondents violated SEQRA, the Town Law or the Public Officers Law. SEQRA REVIEW In Oates et al., v. Village of Watkins Glen, supra, the Appellate Division, Third Department felt compelled to add to their decision, dismissing the Article 78 petition, due to the petitioners’ lack of standing, by asserting that even assuming the standing hurdle was overcome by the petitioners therein, the same Petitioners had failed to state a claim for relief under the State Environmental Quality Review Act. In the Oates case, the approval of a Wal Mart by the two relevant boards, followed a negative declaration by the municipality’s Planning Board. The Court found that the essence of a proper SEQRA review is the lead agency’s identification of areas of environmental concern ; that it take a “hard look” at such concerns; and finally, that the agency make a reasoned elaboration of the basis for its ultimate determination. Oates at 482. The same test is reiterated by the Appellate Division, Second Department, in Miller v. Kozakiewicz, supra, where the Town Board rezoned approximately 50 acres of undeveloped land in the Town of Riverhead to allow construction of a shopping center. Miller at 178. The record reflects that the Town Board, as lead agency in the case at Bar, fully complied with the requirements of SEQRA as set forth above. On October 4, 2001, the Town Board declared itself the lead agency; classified the proposed zoning change as a “Type 1″ action; and directed that a Draft Generic Environmental Impact Statement (“DGEIS”) be prepared (Return, Exhibit 4). The Town Board retained an independent environmental expert to conduct the study and notified as interested agencies, the Suffolk County Department of Public Works, Suffolk County Department of Health Services, the Suffolk County Planning Commission, New York State DEC, and the Southampton Planning Board (Return, Exhibit 7). The Town Board reviewed and accepted the DGEIS on October 23, 2001 (Return, Exhibit 7); and it held two public hearings for comments from interested parties and agencies. The Board directed its consultant to prepare a Final Generic Impact Statement (“FGEIS”). After circulation, the FGEIS (Return, Exhibits 35-41) was accepted; the Board issued a detailed Findings Statement, reducing the number of units from 230 to 189, and it adopted the change of zone on May 14, 2002, nine months after the process began. (Return, Exhibits 52-55). A review of the DGEIS and the FGEIS demonstrate that the Town Board reviewed the effects of the proposed development on, inter alia, area traffic and water quality, the character of the community, and community services. The Board also looked at alternative uses for the drag strip site. While the Petitioners may not agree with the conclusions of the Town Board, there is no question that it considered the impact of the proposed senior housing development on the area; that it took a “hard look” at such concerns; and that it offered a reasoned and detailed explanation for its decision to approve the zoning change. The Board set forth, in its Findings Statement, that the change of zone would serve the salutary purpose of eliminating a preexisting nonconforming drag strip which had become a nuisance; that it would establish needed senior and affordable housing; that it would revegetate 14.2 acres, which had been totally denuded in the Core Area of the Pine Barrens; that it would landscape 52 acres in the Pine Barrens Compatible Growth Area; and that effluent would be treated by the construction of a sewage treatment facility. In addition, the Notice of Public Hearing sets forth in sufficient detail the subject of the proposed change of zone. It states with reasonable precision the location of the proposed change; the type of zoning contemplated; the contemplated use; the fact that the parcel included components in both the Core and Compatible Growth Areas of the Central Pine Barrens, as well as the accessary uses. As set forth in Exhibit 18 of the Town’s Return, the Town published a Notice of Public Hearing on the DGEIS and the proposed change of zone. It thereafter wrote to all residents who had asked to be notified by letter notifying them of a hearing on the FGEIS and zoning change proposal ( Exhibit 17 of Return). The Town held six lengthy public hearings, each attended by the Petitioners herein. Accordingly, the record reflects clear compliance by Respondent Town with the requirements of SEQRA as well as the notice requirements set forth in Town Law §§263 and 264. See, Gernatt Asphalt Products Inc. v. Town of Sardinia, 87 NY2d 678. ZONING A court, in reviewing zoning actions, in general, will not substitute its own judgment for the zoning authority; but restrict its review to determining “whether there has been illegality, arbitrariness or abuse of discretion”. Oates v. Village of Watkins Glen, 290 A.D. 2d at 761; Matter of Pelham Esplanade v., Board of Trustees of Village of Pelham Manor, 77 NY2d 66. Petitioners allege that the Southampton change of zone constituted illegal “spot zoning”, designed to benefit a particular property owner rather than as part of a comprehensive plan and that the process was tainted by dehors the record communications with Town officials, in violation of the Open Meetings Law. The Court of Appeals has ruled that a zoning amendment, which is the result of a reasoned and careful consideration, as part of a comprehensive land use plan does not constitute illegal “spot zoning”. See. Asian-Americans for Equality v. Koch, 72 NY 2d 121. The underlying reasoning, in this Court’s view, for the general rule is that an amendment which is part of a comprehensive plan is designed to benefit the community at large. The history of the Town’s actions concerning this parcel is instructive in this regard. The Town Code provision, allowing for the creation of Planned Development Districts, which can be created on the Board’s own motion, was enacted in 1995 for the express purpose, inter alia, of allowing for the creation of planned residential communities. The parcel in question was part of a 1999 Planning Board study, long before the zoning change in question, as a result of complaints received by the Town regarding the use of the parcel for a racing drag strip. (Return, Exhibit 2). That study, in which Petitioner’s counsel was a Participant, sets forth, in detail, a recommended proposal for use of the subject site as senior housing, utilizing the PDD zoning classification and substantial revegetation. (Westhampton Planning Development District Study at 35). While Petitioners’ attorney argues that the subject study was abandoned, because it covered proposed alternative uses for other sites within the Town, the Court finds that argument unconvincing. The use of that study as groundwork for the subsequent zone change is quite credible. In addition, it is uncontested that the Town’s 1999 Comprehensive Plan Update supported the need for senior citizen housing (Cross-motion Exhibit D). Those facts coupled with the Town’s history of failed attempts to limit the noise from the nonconforming use belie the petitioner’s argument that this zone change was designed solely for the benefit of the owner and contract vendee. With regard to alleged violations of the Open Meetings Law, the record reflects no less that six extensive public hearings on the change of zone application, participation by the petitioners herein at each and every hearing; full and frank discussion of the zoning and environmental issues that are the subject of the petition. There is no allegation that the Town Board ever met with a quorum present, with the owner or contract vendee separately; but, rather, that, upon information and belief, various members of the Board met with parties prior to the public hearings to negotiate a deal. The only facts given by Petitioners in support of this allegation are newspaper reports during the hearing and SEQRA process, in which a Town employee and two separate councilmen are quoted as generally supportive of the concept of the project. The extensive record, however, demonstrates, that the process went forward over a lengthy period, with opportunity for debate and that the original proposal was changed by a reduction in the number of units, upon final adoption by the Board. The Court finds that the allegations are simply not supported by the record. However, even accepting such allegations as set forth, they do not constitute a violation of the Public Officers law, Section 100 et seq. The petitioners neither allege nor present any evidence that private meetings occurred among a quorum of the Board; as set forth, public input was sought at all relevant stages. See, MCI Telecommunications Corp. V. Public Service Commission, 231 A.D. 2d 284. In sum, the Petitioners have failed to demonstrate, based on the record, that the Respondent Town has acted in an arbitrary or illegal manner in the change of zone process. Accordingly, this Court will not substitute its own judgment for that of the municipal body. For all of the foregoing reasons the Respondents motions to dismiss the Petition, based upon Objections in Point of Law, under CPLR §7804(f), are granted and the Petition is dismissed. This constitutes the DECISION and ORDER of the Court.

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